USA v. Jose Adame-Hipolito, No. 17-50221 (5th Cir. 2018)

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Case: 17-50221 Document: 00514358731 Page: 1 Date Filed: 02/22/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50221 Summary Calendar United States Court of Appeals Fifth Circuit FILED February 22, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE CRUZ ADAME-HIPOLITO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-433-1 Before KING, ELROD, and HIGGINSON, Circuit Judges. PER CURIAM: * Jose Cruz Adame-Hipolito appeals his 36-month sentence for illegal reentry after deportation. He asserts that his indictment did not allege that he had a prior conviction and that, therefore, his sentence under 8 U.S.C. § 1326(b) violated his due process rights by exceeding the two-year statutory maximum provided by § 1326(a). Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 17-50221 Document: 00514358731 Page: 2 Date Filed: 02/22/2018 No. 17-50221 The Government has filed an unopposed motion for summary affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses Adame-Hipolito’s argument. Adame-Hipolito concedes that his argument was rejected in Almendarez-Torres and explains that he raises it to preserve it for further review; thus, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED. The judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

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